The Widow’s Rights When Cut Out of Her Husband’s Will
A widow, or the widower, if the husband, is the only person able to demand a share in the deceased spouse’s estate despite a will leaving the widow little or nothing. We refer to it as the Spousal Election. The widow can either elect to take what is given under the husband’s will, or demand her rights under Connecticut General Statutes Section 45a-436 – Succession upon death of spouse. Statutory share.
The statutory share is the widow’s right to carve out of the husband’s probate estate a third of its net value, that third set aside in a trust, and the income from that trust paid to the widow for the rest of her life. If the net estate, after all expenses, is $300,000, the spousal election portion would be $100,000. The widow can demand the share of $100,000 be set aside. The executor must create a trust of that $100,000 with its net income payable to the widow until her death.
A choice of the executor is to buy out the widow by paying the life use value of the income payments if paid up front. A formula for determining that value is based on the widow’s life expectancy per actuarial charts. One such chart used by the State of Connecticut’s Department of Social Services with a 70-year-old widow gives the following result: $100,000 X 5% X the age factor of 3.4819 = $17,409.50. Therefore, if the executor wanted to buy out the widow’s rights for payments from the trust value of $100,000, it would cost the estate $17,409.50.
Legislators have considered giving the widow, or widower if the husband is the survivor, a larger portion of the deceased’s estate. But there has not been a change in the formula for many years.
By the way, no one else is given such an election against a will, not even a child cut out of a will of a parent. Other places are more generous, for example Canada which gives a child a modest right to an inheritance in spite of the parent’s will.
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